February 9, 2006

In recent weeks, the officials said, guards have begun strapping recalcitrant detainees into "restraint chairs," sometimes for hours a day, to feed them through tubes and prevent them from deliberately vomiting afterward. Detainees who refuse to eat have also been placed in isolation for extended periods in what the officials said was an effort to keep them from being encouraged by other hunger strikers.

The measures appear to have had drastic effects. The chief military spokesman at Guantánamo, Lt. Col. Jeremy M. Martin, said yesterday that the number of detainees on hunger strike had dropped to 4 from 84 at the end of December.

Some officials said the new actions reflected concern at Guantánamo and the Pentagon that the protests were becoming difficult to control and that the death of one or more prisoners could intensify international criticism of the detention center. Colonel Martin said force-feeding was carried out "in a humane and compassionate manner" and only when necessary to keep the prisoners alive. He said in a statement that "a restraint system to aid detainee feeding" was being used but refused to answer questions about the restraint chairs.

Lawyers who have visited clients in recent weeks criticized the latest measures, particularly the use of the restraint chair, as abusive.

"It is clear that the government has ended the hunger strike through the use of force and through the most brutal and inhumane types of treatment," said Thomas B. Wilner, a lawyer at Shearman & Sterling in Washington, who last week visited the six Kuwaiti detainees he represents. "It is a disgrace."

Is it? It seems to me they quickly and effectively ended the hunger strike. What would have worked better? The alternative would have been death for these men. I don't see the argument that detainees are free to commit suicide.

80 comments:

While there are compelling strategic, political and military reasons to prevent captured AQ from starving themselves to death, as a veteran, I find the military's version of humane treatment of prisoners rather like the Simpson's episode about the military school, where the student studying English Lit impressed Lisa with a quote, sort of, from Keats "Ode on a Grecian Urn":

"Beauty is truth. Truth is beauty. That's all you need to know. Sir!"

The juxtaposition of the military's mad pursuit of AQ and followed by (often humane) attempts to stop captured AQ's struggles to escape from Gitmo (one way or another) would be the stuff of great comedy, were the stakes not so high.

I'll bet the editors were happy to see this US-bashing story come along--deflect criticism for not printing those darn cartoons and all. Wouldn't want any of the 'innocent' Gitmo types burning down the building.

They should be in the military tribunal system to prevent such nonsense as leftist lawyers using the media to free their clients, a tactic used from Europe post WWII to Iraq today.

Provide them food three times a day and if they don't want to eat, let them starve to death. What the hell is the problem here? This has gone from the absurd to the depraved. Captured enemy combatants not in uniform don't want to eat and some folks are peeing all over themselves. It deserves a logical conclusion of these men getting healthy, being released then blowing themselves up somewhere in the world killing some of our allies if not some of us. Could anyone really expect any other outcome? If so, please share.

The amusing part is that if the food were being withheld, Dem/Left would be screaming from the rooftops about "starvation torture". Instead they're howling about "force-feeding".

The way I look at it is that if you're responsible for the safety of your prisoners, then you're responsible for making sure that they don't do anything stupid, like commit suicide. This includes active prevention of suicide. So, in effect, people arguing against force-feeding are arguing in favor of prisoner abuse.

Provide them food three times a day and if they don't want to eat, let them starve to death. What the hell is the problem here?

The “problem” here is that every time a captive is injured or killed while being captured or held in Coalition or Iraqi custody regardless of why or how, it gets used as propaganda. Think back to reports of how many captives purportedly died in Coalition custody (even though many of them turned out to have been killed by other prisoners, died in attacks on the prison, or were injured by Iraqis who captured them and turned them over to our forces) and how it was touted as “proof” that we were murdering them.

No doubt the officials in this case have decided its better to force feed a few detainees and take the inevitable slings and arrows about how we violated their “rights” rather than have these suicides be spun into a propaganda story about how we’re supposedly starving them to death.

A lengthy but necessary excerpt from an even lengthier and important post from Talkleft.

Ann, you are incorrigible. As a Constitutional Law Professor, you are the people's defense against government walking all over the constitution.

Please read all of Talkleft's post, and then come back when you can redo your post with a more interesting argument: why or why not are many of these people still being detained?

Report: More than half of Gitmo Detainees not Accused of Hostile ActsA new and statistical report, authored and released by Seton Hall Law Professor Mark Denbeaux and attorney Joshua Denbeaux, counsel to two of the detainees at Guantanamo, contains the first objective analysis of the background of those held at Guantanamo. The report is based entirely on data supplied by the Defense Department, and is intended to provide "a more detailed picture of who the Guantanamo detainees are, how they ended up there, and the purported bases for their enemy combatant designation."

These are the findings:

1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.

2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.

3. The Government has detained numerous persons based on mere affiliations with a large number of groups that in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. Eight percent are detained because they are deemed "fighters for;" 30% considered "members of;" a large majority - 60% -- are detained merely because they are "associated with" a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners their nexus to any terrorist group is unidentified.

4. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies.

5. Finally, the population of persons deemed not to be enemy combatants - mostly Uighers - are in fact accused of more serious allegations than a great many persons still deemed to be enemy combatants.

To quote Jeralyn Merritt, Civil Rights lawyer, "If 92% of the detainees were not fighters, and 55% committed no hostile act, why were they designated as enemy combatants in the first place? And why are they still being held? This is the Government's definition of "enemy combatant" as used in the Combatant Status Review hearings:

[A]n individual who was part of or supporting the Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy forces.

Letting them die is probably the worst option. Force-feeding them is better. I think the best idea would be freeing the innocent, or those who were in the wrong place at the wrong time. Of course, from the article, there's no way of knowing, is there, if the hunger strikers are innocent or guilty. But if an innocent person is deprived of life, liberty and the pursuit of happiness, is suicide by starvation an unlikely outcome? I think not.

I'm not sure it's possible to logically separate the questions. Suppose I lock my neighbor in my soundproofed basement and after five years he starts refusing to eat the food I give him. Am I entitled to force-feed him? The answer would seem to have something to do with the question of why he is locked in my basement.

Please read all of Talkleft's post, and then come back when you can redo your post with a more interesting argument: why or why not are many of these people still being detained?

The arrogance of the visitor with respect to our host is unbelieveable.

To paraphase what quxxo asked for: your question comment wasn't interesting, please go to a leftist site that I like, spend lots of your time reading all about how the people down there are innocent bystanders and then come back as starting asking questions that show your outrage at how the Army and US government are mistreating those peole

I just had a idea about what quxxo sounds like: He/She sounds like Dan Aykroyd from the SNL news casts of the late '70, when he would reply, "Jane, you ignorant slut" to something that she said. While those may not be the words that He/She uses, that is the auditude that is given off.

The question of whether to force-feed or not puts the government in a no-win situation, they will be criticized either way. My personal view would be to honor the wishes of those who don't want to eat. Forcing a feeding tube down some one (I'm assuming a naso-gastric tube) is uncomfortable and sometimes painful. Of course so is starving to death.

You are left then with two bad outcomes, both of which are uncomfortable but only one results in death. You could make the "pro-life" argument to force-feed them I suppose.

What rights do sane prisoners have in making medical decisions for themselves? Seems like that is the issue.

Quxxo: How about addressing the actual topic of the post? Would you prefer that people be allowed to kill themselves?

No, I think that these folks should be given real hearings and real representation where their circumstances can be discussed. And those that are not Al Qaeda should be released.

I think you should be actively defending habeaus for these people. I would encourage you to work with the Innocence Project or take a sabbatical to see what you can do to help release innocent bystanders.

I think that the United States should take an active position against torture. And you should be doing what you can as a constitutional law professor blogger to put the genie that John Yoo, Alberto Gonzales and others have let out of the bottle back into the bottle.

And as I have encouraged you before, you should use your blog to petition the blogosphere and George Bush to give the Uighers some limited release within the United States.

Well, it seems if your are going to be a bunch of unpatriotic cowards and maintain this extra-legal gulag, then you might as well go whole hog and torture them and really make it clear how quickly we will toss everything we hold near and dear the minute we get a little 'fraid.

I think the matter ot the guilt/innocence of the prisoners goes to the heart of the matter. The legitimacy of our penal system -- whether for criminals, pows, or "enemy combatants" -- is premised on the fact that those people deserve to be imprisoned. Some sort of process is necessary for that determination; without fair process, these people have legitimate grievances. With fair process, their protest is unfounded. I think that goes a long way to how I would respond.

A legitimate protest deserves both more respect for the cause and message, and more concern for the welfare of the protestor. It is tighter line we walk as we judge how to respond. While I am uneasy with the quality of the treatment inherent in force-feeding, I believe it is warranted.

A protest by a prisoner rightfully convicted of wrongdoing deserves less respect. Presuming that they are protesting the fact of their incarceration, and that that fact has been legitimised by fair process, than they have no legitimate grievance. While I believe all life to be sacred, and it is not for me to make the judgement of who should live, I likewise believe that people are to be left to their own devices; once they've had their fair hearing, let them make their own choice about whether to eat.

I think they are right to force feed them. But, I can understand why the prisoner's are protesting this way --how else to get people paying attention to them? How long are these guys going to be in Gitmo before they even get a hearing? Its been four years and most of the prisoners have gotten no form of process. If you say, they are like POW's in a POW camp until the war ends, tell me when this war will end. What will be "victory"? There will always be terrorists, unfortunately. Does that mean we can lock up anyone we suspect of terrorism and give them no hearing FOREVER? I just wonder how long they will be there with no contact with an attorney, their families, etc. Will be still be talking about this in 2008? I fully support prosecuting terrorists and al Qaeda but it is wrong and frankly unAmerican to hold people who have had no determination at all of guilt or innocence indefinitely without trial.

That's right, we are only holding people in Gitmo to satisfy the blood lust of our military/polical types. Or is it to steal their oil? I can hardly keep it straight any more.

Again, quxxo brings up a peripheral argument to deflect attention from the real argument, which is how we are to defend the West from radical Islam.

Agreed, the attempt at a thread jack was particularly silly because the perpetrator made the glaring error of trying to equate detainees being held at Gitmo with “enemy combatants” when the “objective study” (snicker) s/he cited admitted that the majority of detainees were there because we believe that they have information about and/or associations with members of terrorist groups rather than because they were themselves involved in actual hostilities against the United States.

In other words the fact that the majority of detainees may not meet the definition of “enemy combatants” is only interesting if you were unaware that that wasn’t the primary reason they were being held.

Madison: As I understand it, plenty of people determined to have been innocent (ie, detained because of mistaken or fraudulent information or due to mistaken identity or simple bad luck) have been released. Given that, I suspect there aren't many (if any) known-innocent people still in custody.

The people Quxxo is going on about are not described even by his own quoted sources as innocent; merely that they're not members of an organisation on the List of Terrorist Groups. (Apart from the way that being only "associated with" such a group, rather than a member, is not the same as being innocent of wrongdoing, further, there must be small groups or solo-actors that are hostile, but are not on The Big List.)

(And his headline doesn't match the data; headline says "more than half not accused of hostile acts", but the data says more than half (55%) were not determined to have committed same. Accusation and determination are not the same thing. And of course "not determined to" is not the same thing as "determined not to". The former is supported, not the latter.

Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.

I think it's worth noting that simply because they are not determined to have committed hostile acts does NOT mean that they are determined not to have committed hostile acts. In other words, from this fact alone, we do not know whether they have committed hostile acts.

Anonlawstudent said:"The legitimacy of our penal system -- whether for criminals, pows, or 'enemy combatants' -- is premised on the fact that those people deserve to be imprisoned."I'm not very persuaded by this, because Gitmo is in fact explicitly NOT a pert of any penal system. Gitmo is not a penetentiary, it is a military detention center (for what would be POW's if they had POW status). They are not there for punishment, deterrance, or rehabilitation. The one and only purpose of their presence is incapacitation - to make sure that they (a) cannot commit any further acts against soldiers and (b) are available to be questioned, and if necessary, tried and executed.

To stay on topic, I have no problem with them being force-fed. If they are truly innocent of any crime, they have my sympathy but that does not give them a right to martyr themselves. If (as is likely) they are not truly innocent, they have no grounds to avoid the meting of justice or to prevent us from extracting information from them.

The question whether these people are detained rightfully or wrongfully is most definitely separate from how they are treated. Our prisons are full of people who have had full due process and have been convicted of terrible crimes, yet that does not in any way entitle us to abuse them. People who are connecting the two questions are not thinking straight! How absurd that you flatter yourself as having special concern about individual rights!

As for the comments about how bad it is to have a tube inserted, you need to consider that this treatment -- a medical treatment -- convinced nearly every prisoner to end his hunger strike. The procedure has prevented a tremendous amount of suffering.

As for the comments about how bad it is to have a tube inserted, you need to consider that this treatment -- a medical treatment -- convinced nearly every prisoner to end his hunger strike. The procedure has prevented a tremendous amount of suffering.

Professor Althouse makes a pretty good utilitarian argument that the discomfort and indignity of having a feeding tube forced on a few prisoners is greatly outweighed by the suffering it prevents by deterring others from trying the same stunt. I’d also add that there is a benefit in being able to stop any “see how the Great Satan is starving Muslims to death at Gitmo” stories by preventing these detainees from starving themselves to death.

One other thought, if it should turn out that some of these people are innocent or wrongfully detained, I’d much rather that they were alive to be eventually released. The indignity and discomfort of a feeding tube is a temporary thing. Death tends to be more permanent.

I believe that both citizens, and non-citizens who reside or visit the US legally, all had access to habeus corpus.

Off topic history trivia on force feeding:

President Wilson ordered some suffragists force fed. The women had chained themselved outside the White House and were arrested. They went on a hunger strike to protest their arrest. This incident generated negative publicity for President Wilson.

Shorter Ann Althouse: It is irrelevant to my courtroom that 92% of the defendants have committed no crime and have been illegally held for two or more years. The only question before us today is if we should force feed them.

This is a wierd thread. Of course the circumstances surrounding capture and detention is relevant! The force feeding is only news worthy because it is happening outside of the US legal system.

US prisoners are force fed if they are in danger of starving. Their liberty has been removed after going through the legal procedures of the US legal system.

Of course, the issue here is that the prisoners are not processed either through the criminal system, or given prisoner-of-war status. So the US gets international attention, and all eyes are on the treatment of the prisoners. The world is interested, thus force feeding becomes international news.

Geoduck makes a good point: Suffragettes (how quaint the word) were force fed in both the US and the US in the nineteen teens;

That said, and as a hypothetical: what if there was an assisted suicide law on the books--can someone parse for me the difference between an external agency maintain life or terminating life? If the prisoners want to die, then shouldnt the government let them?

How is this different than the Terry Schiavo case? And I am not talking at a jurisdictional level (feds vs states)--I am trying to keep it at a general level.

This is a very complicated issue (like virtually every other aspect of post-9/11 detentions). On the one hand I can understand the desperation of the detained. Regardless of why they are detained and how they got there, the fact remains that whatever freedoms they had prior to detention have been taken away - in my opinion rightfully so. But one must also consider the perspective of the United States. We're at war. War is not pretty. We have warriors doing the dirty, nasty business of war and the bad guys, along with their associates, supporters, and "members" of their "groups" need to be dealt with. Dealing with them means killing them or capturing them. Once captured the military is responsible for providing them the basics of food, shelter, etc. Most importantly, the military is responsible for doing its utmost to keep them alive. I'm rambling...this hits close to home, as I spent a year at GTMO dealing with these detainees and their myriad "issues"...I just wish the "hate America first" crowd would apply some critical reasoning...

Hmmm. Good question about the right to suicide. I'm not following these issues closely enough to know the answer to this. But wasn't there a SCOTUS case in '97 (Kvorkian?) that determined there was no fundamental right to suicide? And the Oregon case wasn't decided on the basis of fundamental liberty.

Once a prisoner has used up his due process rights, my understanding is that the state has the right of life or death over the individual. Wasn't there a older prisoner who was put to death who was previously recussitated in jail? So the state doesn't just determine the death, but the time of death.

I think that the international world is much more interested in Guantanamo then our domestic politics. (Civil Libertarians are interested, and the lawyers who represent the detainees are interested, but in general, it doesn't get much political play in the domestic United States when compared to the international media.)

But, that doesn't mean that there isn't a diplomatic cost to the detainee issue. (See C. Powell and L. Wilkerson.)

As head of the Department of Justice and chief law enforcement officer of the federal government, the attorney general represents the United States in legal matters and advises the president and executive department heads of the Government. The attorney general appears to represent the government before the U.S. Supreme Court in cases of exceptional importance.

======

It would appear to me that the US Attourney General is indeed the President's counsel.

Professor Althouse: I confess to not understanding what the legal issues are, and since I am not in your classroom, could you identify them for me? Not trying to be a smart ass here--Just trying to see what legal issues are involved. I know you are aware that some of your commenters dont have legal backgrounds. This is a teaching moment!

As head of the Department of Justice and chief law enforcement officer of the federal government, the attorney general represents the United States in legal matters and advises the president and executive department heads of the Government.

A "government of the people, by the people, and for the people." The AG advises the president on most occasions, but the AG does not represent the president. The AG represents the People. As in "People vs. Madfish Willie." The AG is the people's counsel.

Since the Judicial Branch and the AG are charged with prosecuting crimes (such as illegal wiretapping, or outing of a covert agent, or lying before Congress, or taking the nation to war under false pretenses, or denial of equal protection, or rigging of elections, or malfeasance in office, or breaching his fiduciary responsibilities of office, or a*hole-ism), it would seem to be a conflict for the Judicial Branch to both press for these charges and to represent the President against those charges.

well, maybe, quxxo, but often symptoms need to be immediately confronted before cures can be enacted.

Even Shorter Ann Althouse: I don't care why they were detained, we need to make sure we don't abuse them!

as long as they are being detained, let's make sure we don't abuse them; then, from a non-abusive position they can be dealt with appropriately (ie released if not a threat)

Force-feeding seems to me to be a matter of providing for the basic welfare of prisoners. i find it ironic that past strikes have been, at least in part, for the right to be treated under the Geneva Conventions. the GC would expect their captors to care for their basic well-being. see the word 'omission' below:

"Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention."

and also: "The wounded and sick shall be collected and cared for."

I think 'on the verge of starving oneself to death' probably applies both as 'sick' and, potentially, under 'omission'

it seems to me that force-feeding striking prisoners in order to protect their lives would qualify as both humane and legally necessary under the Conventions that the US has decided to ignore (rightfully so for the most part, as most of these prisoners do not qualify under Article 4). the current strike is instead as I understand it about the indefinite nature of their detention; given that the detainees are irregular soldiers in an ongoing war, even the GC would not demand release until the cessation of hostilities.

that's all assuming of course there's some reason for their detention... so assuming they don't starve themselves to death let's address this and release the non-threat detainees

SippicanCottage: Some rights in the Constitution and its amendments apply to all "persons" (including, unfortunately, those statist/collectivist entitites, corporations), citizen or no.

More to the point, I heard one of their lawyers on the CBC (to which even Muricans can listen via the Internets)...his point was not that his client was being force-fed ("I don't want my client to die,"), but that they were being force-fed improperly: roughly and by non-medical personnel, both of which go against the military's own rules (I believe the reg. he cited explicitly mandated "compassion"). It's important that people bearing arms in our name be held to the rules that allow us to do so safely; if we're lax, we'll deserve (in the amoral causal sense) to get that junta, or a couple of decades of Maximum Leader McCain.

"I'm not very persuaded by this, because Gitmo is in fact explicitly NOT a pert of any penal system. Gitmo is not a penetentiary, it is a military detention center (for what would be POW's if they had POW status). They are not there for punishment, deterrance, or rehabilitation. The one and only purpose of their presence is incapacitation - to make sure that they (a) cannot commit any further acts against soldiers and (b) are available to be questioned, and if necessary, tried and executed."

This is a good argument -- but my question still stands. Do we really have no problem with keeping people with no form of due process until we say the "war on terrorism" is over? 10 years? 20 years? 30 years? Forever (since there will always be terrorists)?? I am not arguing the US Constitution, the Geneva Convention, etc. - just basic American/democratic values. In my opinion it is utterly wrong to lock someone up and throw away the key without giving them some form of judicial process.

In my opinion it is utterly wrong to lock someone up and throw away the key without giving them some form of judicial process.

I am sorry me, but you are threadjacking once again! We are explicitly not talking about what makes for a good and honorable and just judicial process, or what might be considered part of man's long legal history and fight for human rights.

We are only asking how many angels may legally dance on the head of a pin.

Ann said --> "The question whether these people are detained rightfully or wrongfully is most definitely separate from how they are treated ... People who are connecting the two questions are not thinking straight!"

I think, this is right; it certainly explains the cul-de-sac I wound up in at the end of my last post. Except that this is not simply about our conduct, but about our response to the prisoner's conduct. And the legitimacy of the prisoner's conduct is determined by whether they've got legitimate grievances about their imprisonment. How does this fit into the calculus? I don't really have a conclusion as to whether they should be force-fed or not. Our treatment of people depends on how they conduct themselves. Their conduct needs to be understood in context. Perhaps this is such a basic question of human rights that it is baseline below the threshold for judgement on the merits. Does such a thing exist?

Thus one can be held responsible for the failure to act only in the presence of a duty to act. A parent has an affirmative duty to protect his/her child from abuse. A stranger does not have an affirmative duty to restrain another stranger from foolish and fatal conduct.

This is a really important limitation on liability; without it we would continually be committing crimes of omission. The boundaries are fuzzy, but it's a critical limit.

Does it apply to the jailor-jailee relationship at Gitmo? Is there an affirmative duty to prevent them from harming themselves? It could be argues that the term "omission" in your quote targets intentionally "ommitting" to offer food to prisoners. Or "ommitting" providing civilized hygine facilities. And that it does not comprehend compulsory behaviour like force-feeding.

"Is wretchedness depriv’d that benefit / To end itself by death? ’Twas yet some comfort, / When misery could beguile the tyrant’s rage, / And frustrate his proud will." King Lear Act IV, scene vi. Only a true tyrant would keep someone alive merely to prolong their torture.

Dave's assertion (undoubtetly accurate) that the prisoners at Gitmo don't qualify for protection under the Geneva Conventions belies a general cultural hypocrisy that I'm becoming increasingly aware of as a law student. (Not a personal accusation, Dave. You may not be privy to this).

People critisize practitioners of the law for highly technical construction and interpretation; for seeking "loopholes" by defining and redefining term; by strict textaul interpretation rather than abiding by the "spirit" of the law, etc. etc.

Yet political expediency allows us to look strictly at the technical definition of POW, and declare that the GC doesn't apply to Gitmo. What about the spirit of the law? What about the incessant criticism of technical interpretations and formalistic construction?

What has happened to you people? Can't you imagine yourself in the situation of the detainee at GTMO? Why do you think he wants to starve to death? Have you no sense of history - that once you give the government carte blanche to use any means necessary to accomplish its ends, it will turn its tactics on you, eventually. You can posture and bluster to all of us and say, it will never happen to me. But don't lie to yourself. What the government is doing transcends your hard right alliances - it transcends business as usual. The maintenance of GTMO and other detainee camps across the world is corrupting our democratic traditions and attacking our basic humanity, making us complicit in these crimes. We are all guilty of the government's actions on our behalf, unless we speak out.

Think, people, think. I can't believe that you all want to support policies that will lead to a state of permanent warfare. The United States, as powerful and wealthy as it is, cannot sustain this 'so-called" war on terror. It will bankrupt us - morally and financially.

I live 12 blocks from Ground Zero, I saw and smelled the devastation caused by that handful of zealous (and incredibly lucky) true believers. But I will NEVER sanction the use of torture and inhumane detainee treatment as a remedy.

I don't disagree at all. But the question remains, how do we deal with hunger strikers? I don't deny that they should be given due process and treated in accordance with the GC, etc. etc. But when they starve themselves, what do we do?

Yet political expediency allows us to look strictly at the technical definition of POW, and declare that the GC doesn't apply to Gitmo. What about the spirit of the law?

Fine, the spirit of the Geneva Convention was to give an incentive for signatories to the treaty to treat each other’s POW’s better so that the other side would reciprocate and do the same.

As the people we’re fighting are (a) not signatories, (b) don’t qualify as lawful combatants, and (c) have demonstrated that they consider beheading civilians for propaganda purposes to be a perfectly acceptable practice, the chance that they would ever reciprocate and suddenly begin to treat captured American servicemen or civilians in anything approaching a civilized matter (much less follow the GC) is slim to none.

Hence without this reciprocity which was at the heart of why any nation State would sign the GC, adhering to it would only provide a detriment to the United States and her allies without any of the benefits.

nyvoice: My biased observation is that the further away from New York City, and the more likely that the speaker never cared too much for "Jew York City" in the first place, the more likely the speaker is to want to use the events of 11.09.2001 as a justification for something irrelevant to it.

The question whether these people are detained rightfully or wrongfully is most definitely separate from how they are treated. Our prisons are full of people who have had full due process and have been convicted of terrible crimes, yet that does not in any way entitle us to abuse them. People who are connecting the two questions are not thinking straight!

The government is entitled to use all sorts of force on people who have been convicted of crimes after due process: for example, if they try to climb over the prison wall, prison guards can push them back down and perhaps even shoot them. The government is not entitled to use force against people who have not been convicted except for narrowly defined purposes (for example, subject to the various rules regarding bail, the government can imprison someone prior to trial to secure their attendance at trial). However, if someone not convicted of a crime or otherwise validly held who is of sound mind appears to be starving themselves to death, I'm not sure what the legal basis would be for the government to force-feed that person.

Polish Jews in the Lodz ghetto periodically went on hunger strikes. Would the Nazis have been justified in force-feeding them? Warning: Answers that make negative references to Nazi ideology or that discuss whether the establishment of the ghetto itself was justified will receive failing grades as their authors are not thinking straight.

According to Wilner, who was interviewed on NPR yesterday, the detainees are not being force fed. They are strapped down and forced to ingest milk of magnesia and other freedom fightin' substances. This causes pain, and prompts the detainee to vomit and defectate. They are still strapped down, so the puke and feces is all over them. This torture continues until the detainee agrees to eat. Sometimes, rumors of the torture are enough to convince hunger strikers to cease the strike.

This isn't providing fruit juice and vitamin supplements to a recalcitrant prisoner, this is torture against persons that have not been indicted of any crime, nor shown to have participated in any war.

I guess Prof Althouse is suffering from a mighty dose of hubris, because she used to be able to spot issues from a microscopic level and from 20,000 feet. At least she did in her classroom. Now with the shelter of the internet she misdefines the issue and berates those who offer a different perspective.

The knee-jerk reaction, that, if the Army is doing it it has to be bad, which of some of your commentators seem wont to embrace, always amuses me. In this instance, they and the press have latched on to the devil words of "force-feeding" and "restraint chair" as if these were practices and inventions of Dr. Mengele. Both of these practices are legally recognised in this state, anyway, as legitimate means of preventing self-harm. Allowing these prisoners to continue their hunger strikes and thereby commit suicide by starvation is, in my view, far more reprehensible than doing something to preserve their lives, if not their dignity. Those who would allow the protesters to continue might as well hand each protester a length of rope with a noose so that their suicides could be more efficiently accomplished at less pain to them.

Precisely why the inmates are there is irrelevant. What is relevant is the obligation of the US to keep them healthy.

1) Godwin's law is a description of an observed phenomenon, like the laws of thermodynamics, not a regulatory law. The classical statement of Godwin's law is that "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1."

2) Even accepting a degenerate, regulatory formulation of Godwin's law in which a comparison of one's opponent to the Nazis or Hitler -- or of one's opponent's position to Nazi ideology -- concedes the debate, no such comparison has occurred or was intended. For obvious reasons, I don't think Prof. Althouse is at all Nazi-like; I don't even think the situation at GTMO, which I am highly critical of, warrants comparison to the Nazis. The point of the hypothetical is to show the fallaciousness of a distinction, not to accuse anyone of being a Nazi.

3) There must be in any case a necessity exception to regulatory formulations of Godwin's law: for example, you cannot lose a debate about WWII by mentioning the Nazis because you cannot discuss WWII without mentioning the Nazis. Here, I am not aware of any obvious alternative example of an unjustly imprisoned person engaging in a hunger strike. If there were other obvious examples I would have used them. (I think the example of the suffragettes would be obscure except to those who saw the recent HBO film on that subject, and I don't have any independent knowledge as to whether that film is accurate.)

Alkali, I don’t really know who you think you’re fooling but it was pretty obvious that you were hoping for some cheap shock value by asking “would the Nazis have been justified in force feeding [Jews]” during a discussion of trying to prevent suicide attempts by Gitmo detainees through force feeding.

Question for the peanut gallery, now that we've all heard Steve’s revelation about “Milk of Magnesia torture” (even assuming its true) how soon before we’re all treated to the spectacle of Dick Durbin taking the floor of the US Senate to say “if you heard about force feeding milk of magnesia to prisoners you’d think you were hearing stories about Nazi Germany, the Soviet Union, or the Khmere Rouge . . .”?

To be clear, the question isn't whether the Nazis would have been justified in force-feeding Jews they were holding prisoner but rather whether the question is answerable and meaningful without considering the circumstances of the confinement, as Prof. Althouse contends. I think the answer is plainly no.

Darn, and I thought that my real revelation was that milk of magnesia was a freedom fightin' substance.

It is hard to be the shining light of freedom in the world when we run Abu Ghraib and Gitmo, and wiretap without warrants. I am not willing to sacrifice freedom for safety, particularly where the person purporting to guarantee the safety knocked himself out with a pretzel.

I think 'on the verge of starving oneself to death' probably applies both as 'sick' and, potentially, under 'omission'

'omission' is neglect of the duty listed above to care for the wellbeing of prisoners (in the mental-institution, protect-from-themselves sort of way). thanks jal for backing that up.

as far as the spirit of the law, i'd say that the 'optional' assumption of GC standards for these prisoners (which I wholeheartedly support and think is is very much in line with American values) is pretty clear from the 1st line I quoted above.

certainly the voluntary adoption of GC standards relates to the issue of whether the captives should be held indefinitely, which is a whole separate can of worms... that i'd love to address but we're far enough off topic as it is.

Your argument is all over the place. First of all, belie means to contradict, not to reveal. Yes, culture is full of hypocrisy. If men were angels, there would be no need of government. Let's talk about the cultural hypocrisy of the enemy--you know, the Islamists--who target women and children, who kill over perceived slights in cartoons, who teach hate to their children the world over, who kill women and homosexuals for being...women and homosexuals, who oppress their people through totalitarian regimes, and then demand from us, through their useful idiot lawyers, "compassion," when we try to save their worthless lives, demand Geneva Convention privileges based on values they scorn, demand adherence to the same cultural standards they fled in the countries they now populate. Your analysis is not untrue, but you ignore the hypocrisy of the rest of the world.

So unnamed "people" accuse lawyers of being wonks on process, which means we have no right to want to follow the law on Geneva Convention? Two wrongs don't make a right, in the law or in life.

I have to admit, if I thought you were arguing from a position of reason, I'd be appalled. Instead, I'm guessing that you're arguing from a position of advocacy (i.e.: attempting to defend the practice).

(I should mention that I'm not a law student. I have no idea if any of the terms I use are used differently in law schools or in the legal profession.)

Yes, the detainees had to be protected from death. We have taken their freedom from them, and made ourselves responsible for all aspects of their lives. Anything that happens to them is, at least indirectly, our responsibility.

However, the actions taken were not actions consistent with a concern for the health of the detainees; it was taken in order to use suffering to enforce compliance with the demands of their captors.

And yes, it was as successful as brutality often is. They are still alive to be kept in misery, and their inhumane treatment might serve as a warning to others; it might keep them in despair, believing that they have no way of calling attention to their detention or their treatmnet.

Even if one accepted the premise that detainee treatment should be based upon what a detainee deserves (and I wholeheartedly reject that premise) this is only acceptable insofar as they are all deserving of the treatment they have received. However, we have no positive evidence that they are deserving of this treatment. We only have claims of people under the Bush administration's control.

Now, you'll have to pardon me for using history as a guide, but I'd say that claims about WMDs, claims about an Iraq-Al Qaeda connection, the response to Katrina, White House support of Clear Skies, and more, demonstrate that we can't trust the current administration. If they are honest, we can't be certain of their competency, and if they are competent, we have no strong evidence of their honesty.

As such, one can't be certain that the detainees at Guantanemo deserve the harsh treatment they are receiving.

Hence, one can't claim that the use of force to break the back of a hunger strike is justified.

If one believes that America should compromise her values in the face of danger, then perhaps one can argue that the use of force to break the hunger strike might have been acceptable, but the fact of the matter is, we don't have the information necessary to make such a determination.

Since I believe that values are meaningless unless they are held to when hard, dangerous, or inconvenient, I feel that the actions at Guantanemo are indefensible.

"However, the actions taken were not actions consistent with a concern for the health of the detainees; it was taken in order to use suffering to enforce compliance with the demands of their captors."

How on earth do you know that? You are accepting their lawyers' allegations as truth, at face value, something you would never do with a statement from the government. Use your critical faculties to question ALL power, not just government power.